1

ROLE AND INDEPENDENCE OF

THE PUBLIC SERVICE COMMISSION

PRESENTATION TO PORTFOLIO COMMITTEE ON PUBLIC SERVICE AND ADMINISTRATION

21 JUNE 2006

2

CONTENT

Historical context/Background Interim Constitution 1996 Constitution

Current legal framework

Review of legal framework

3

HISTORICAL CONTEXT/BACKGROUND

Interim Constitution Public Service Commission at national sphere with wide powers

relating to all human resource practices, compensation, organisational matters and information technology

Provinces could have a Provincial Service Commission with powers related to human resource practices and organisational matters, but acting within the national norms and standards set by the national PSC

Public/Provincial Service Commission could make binding recommendations, unless rejected by President/Premier

The national PSC made policy related to the management of the Public Service, implemented these policies and monitored its application in the Public Service

4

HISTORICAL CONTEXT/BACKGROUND

Joint Working Group of Ministry for Public Service and Administration and Public Service Commission constituted in 1995 to align roles & responsibilities of Minister and PSC with emerging system of governance and Constitutional Principles contained in Working Draft of New Constitution published in November 1995

Constitutional Principle XXIX requires that impartiality & independence of Commission, Reserve Bank, Auditor-General & Public Protector be safeguarded in interests of maintenance of effective public finance & administration and high standard of professional ethics in public service

Constitutional Court could not certify new Constitutional text in its first round of certification hearings because of absence of details on Commission’s functions & protection afforded to it to perform functions impartiality & independently

after amendments the CC certified the current text in December 1996

5

HISTORICAL CONTEXT/BACKGROUND cont

1996 Constitution Requires singlesingle Public Service Commission – no provision for

provincial service commissions [s196(1)], however provision is made for commissioners nominated by each of the Premiers of provinces, a result of negotiated nature of the Constitution

The approach of a single PSC is supportive of the Constitutional requirement of a single Public Service at national and provincial spheres [s197(1)]

Certification judgment indicates that irrespective of the fact that a commissioner is recommended by a province, Commission has joint responsibility for the work that it does

The Constitutional principles and the Constitution ascribed a completely new role to the PSC

The joint working group at one stage even proposed a name change to the Commission for Effective Governance and Efficiency

No longer has range of executive powers The primary role of the new PSC was one of an independent Constitutional body

performing monitoring, investigating & reporting functions

6

LEGISLATIVE REFORMS TO SUPPORT THE CONSTITUTIONAL REQUIREMENTS

During 1997 and 1998 the public service legislation (the Public Service Act, as amended) was amended significantly to ensure new public policy and management arrangements, and the process to revise and amend subordinate legislation (the Public Service Regulations, collective agreements and Staff Codes) commenced

In this arrangement powers were distributed to- The Minister for the Public Service and Administration - policy-making &

regulatory powers to set national norms & standards; and President, national Ministers, Premiers & MECs as executing

authorities of their departments to perform functions within the norms set by the Minister for the Public Service and Administration

7

CURRENT LEGAL FRAMEWORK

The new Constitution provides for- 14 commissioners

Five recommended by National Assembly One commissioner for each province nominated by Premier

A five year term of office, renewable for one additional term The arrangements for removing a commissioner The Commission to-

report at least annually to National Assembly and, regarding provincial activities, to respective provincial legislatures, on its activities & performance of its functions; and

provide an evaluation of the extent to which values & principles in section 195 of Constitution are complied with

The Commission’s functions[Section 196(4) -12)]

8

CURRENT LEGAL FRAMEWORK RELATING TO THE PSC’S INDEPENDENCE

1996 Constitution expressly stipulates that- Commission is independent Commission must be impartial and perform its functions without

fear, favour & prejudice in interest of maintenance of effective & efficient public administration and high standard of professional ethics in public service

Commission to be regulated by national legislation Other organs of state must assist and protect Commission to

ensure its independence, impartially, dignity & effectiveness No person or organ of state may interfere with Commission’s

functioning[Section 196(2)-(3)]

These provisions are similar to section 181 that guarantees independence of Chapter 9 institutions

9

THE PUBLIC SERVICE COMMISSION ACT

Public Service Commission Act, 1997 deals with- Appointment process, chair & deputy chair, conditions of

appointment & removal process Inspections, access to documents & inquiries, including powers to

summon persons & question them & require them to produce documents

Rule-making & delegation powers for Commission Criminalizing hindrance or obstruction of performance of

Commission’s functions

10

FUNCTIONS OF PSC

Functions of Commission in terms of Constitution- Promote section 195 values & principles in public

service Investigate, monitor & evaluate organisation,

administration & personnel practices of public service Propose measures to ensure effective & efficient

performance within public service Give directions aimed at ensuring that personnel

procedures relating to recruitment, transfers, promotions & dismissals comply with s195 values & principles

Report on its activities & performance of its functions and provide evaluation of compliance with s195 values & principles

11

FUNCTIONS OF PSCcont

Functions of Commission in terms of Constitution (cont)- Of own accord or receipt of complaint-

Investigate & evaluate application of personnel & public administration practices, and report to relevant executive authority & legislature

Investigate grievance of public service employees regarding official acts/omissions and recommend remedies

Monitor & investigate adherence to applicable procedures in public service

Advise national & provincial organs of state regarding personnel practices in public service

Perform additional functions prescribed by an Act of Parliament

12

REVIEW OF INSTITUTIONS SUPPORTING DEMOCRACY

Proposed review of constitutional institutions supporting democracy includes review of Public Service Commission Review focus on mandates, employment arrangements and

budgeting/funding Ultimately, Parliament to decide on any proposed legislative

changes, if any

In a past review of the PSC, the Presidential Review Commission made proposals to redirect the role of the PSC significantly

13

MEASURES TO STRENGTHEN INDEPENDENCE

Commission’s independence protected via- Specific constitutional imperatives mentioned earlier (appointment

processes via legislatures, removal processes, duty on organs of states to protect its impartially & prohibition on interference with its functioning)

Administrative support provided by Office of Public Service Commission with Chairperson of Commission being its executing authority and not a Cabinet Minister (Public Service Act)

However, the head of department (DG) is appointed by President in consultation with national Cabinet

Specific powers to conduct inquiries and accompanying summoning powers (PSC Act)

Criminalizing hindrance/obstruction of Commission in performance of its functions and non-compliance with summons issued during Commission’s inquiry (PSC Act)

14

ENHANCING INDEPENDENCE

Independence is not a matter that is regulated in law only – it is very much about how the PSC conducts its work and the quality and contribution made through its primary role, and the last few years we have seen a marked improvement in the quality of the PSC’s contributions

It has been proposed that Chapter 9 institutions should receive budget directly via allocation by Parliament and this proposal could also apply to the PSC, but will this really enhance independence?

The funding of these institutions will be looked at as part of the review of institutions supporting democracy

Unlike Chapter 9 institutions, Commission’s secretariat is a public service department (Office of the Public Service Commission) with the OPSC’s head appointed by Executive

Again, this arrangement stems from the historic establishment of the new PSC and the Department of Public Service and Administration and the “splitting” of staff between the two offices

Appointment of a secretariat, including its head, by Commission may enhance independence

By refining Commission’s functions unspecificity and overlap can be eliminated, especially those functions that overlap with executive functions (see next slides)

15

REVIEW OF CURRENT LEGAL FRAMEWORK

Current Commission’s functions could be reviewed in following respects: Consider necessity of grievance procedure for

employees [s196(4)(f)(ii)] in view of advanced labour remedies since inception of Labour Relations Act, 1995, applying to both private andand public sector employees

Establish public service wide bargaining council and enable sectoral bargaining councils with dispute resolution mechanisms for unfair labour practices & dismissals

16

REVIEW OF CURRENT LEGAL FRAMEWORK (cont)

Current Commission’s functions could be reviewed in following respects (cont):

Advisory function regarding personnel practices [s196(4)(f)(iv)]- Appears at variance with its non-policy, non-regulatory & non-executive role

under 1996 Constitution More importantly, seems in conflict with its investigative, monitoring and

evaluation role under 1996 Constitution [s196(4)(b), (e), (f)(i)-(iii)] Clarity is needed on its power to give “directions” aimed at ensuring that

mentioned personnel procedures comply with s195 values & principles [s916(4)(d)]

Constitution does not say how such directions are to be implemented Potential conflict with investigative, monitoring & evaluation role, e.g. can’t

investigate own directives Overlap and duplication between some of functions appear to exist &

terminology should aligned, i.e. s196(4)(b) vis-à-vis s196(4)(f)(i) and (iii) s196(4)(e) and 2nd part of s196(4)(f)(i) “personnel procedures” vis-à-vis “personnel practices”

17

REVIEW OF CURRENT LEGAL FRAMEWORK (cont)

Constitution of Commission could also be subjected to review in following respects:

Consider a reconfiguration of composition, including the necessity of commissioners nominated by provinces

Reconfiguration needs to be dictated by the functions of PSC following a review process

The role, functions and configuration of the PSC also needs to be considered in the context of the emerging Single Public Service and possible new demands

Currently, if vacancy occur, Commission is not duly constituted Rectify it by requiring minimum number of commissioners in office

18

CONCLUDING REMARKS

From a Constitutional and legal point of view, the PSC is in a similar position to Chapter 9 institutions

On the face of it, the PSC mandate is broad and sometimes unspecific or a duplication; can be traced back to the Constitutional principles, but also stems from the organic evolution of a new organisation like the PSC

Even at practical level duplication is experienced between the PSC and the dpsa

It is often this duplication that causes the PSC to do “executive” functions, thus giving rise to a perception that the PSC may not be sufficiently independent

The review of institutions supporting democracy will include the PSC and the results of this review will provide an opportunity to Parliament to reassess the role and functioning of these institutions, including the PSC